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A
lawsuit filed by public interest, environmental and labor groups seeks to overturn President
Donald Trump’s Jan. 30 executive order that requires federal agencies to identify
at least two regulations to repeal for every new regulation proposed or issued, for
a total net dollar cost of zero.

The lawsuit joins a growing list of legal challenges to executive orders signed in
the first weeks of Trump’s presidency, and White House press secretary Sean Spicer
called this suit wildly inaccurate. “It’s just subjective at best and it doesn’t have
any basis in fact,” he told reporters.

Still, some in the legal community have been concerned about how the order would be
implemented. “My view is that it’s a gimmick,” said Laurence Platt, a partner in the
Washington office of Mayer Brown.

“I don’t understand how [the order]
can be practically implemented in the near term,” Platt said in an interview with
Bloomberg BNA on Feb. 6, two days before the lawsuit was filed.

Lawsuit Challenges Constitutionality of Order

The lawsuit was filed by Public Citizen, the Natural Resources Defense Council and
the Communication Workers of America in the U.S. District Court for the District of
Columbia.

The suit charges that the executive order exceeds Trump’s constitutional authority,
violates his duty under the Take Care clause of the U.S. Constitution, and directs
federal agencies to engage in unlawful actions that will harm countless Americans,
including plaintiffs’ members.

“To repeal two regulations for the purpose of adopting one new one, based solely on
a directive to impose zero net costs and without any consideration of benefits, is
arbitrary, capricious, an abuse of discretion, and not in accordance with law,”
the lawsuit said.

One reason is that no governing statute authorizes any agency to withhold a regulation
intended to address identified harms to public safety, health, or other statutory
objectives on the basis of an arbitrary upper limit on total costs (for fiscal year
2017, a limit of $0) that regulations may impose on regulated entities or the economy,
it said.

Executive Overreach

“President Trump’s order would deny Americans the basic protections they rightly expect,”
said NRDC President Rhea Suh, in a statement. “New efforts to stop pollution don’t
automatically make old ones unnecessary,” she said.

The plaintiffs in the lawsuit are represented by lawyers at the Public Citizen Litigation
Group, NRDC, CWA and Earthjustice.

“When presidents overreach, it is up to the courts to remind them no one is above
the law and hold them to the U.S. Constitution,” said Earthjustice attorney Patti
Goldman, in a statement. “This is one of those times.”

Authority to Regulate

The executive order in several places states “to the extent permitted by law” or “unless
prohibited by law,” but it’s not clear what that means, Platt said.

Regulations are issued pursuant to law; it’s a delegation of authority from Congress,
Platt said. One possible distinction may be regulations issued under a generalized
authority to regulate versus a specific direction to regulate, he said.

If a statute obligates an agency to issue a regulation to implement a specific law,
the Office of Management and Budget director can’t then tell the agency it can’t regulate
because it costs money, Platt said.

“But for those regulations that are pursuant to more generalized regulatory authority,
those are the ones that in essence are going to be stopped in their tracks,” he suggested.

Conflict with Congress

“To me, that’s the No. 1 gating issue,”
Platt said. “What does it mean to say, to the extent permitted by law? Or unless prohibited
by law?”

If it’s a specific direction in law, Congress’s will cannot be undone by the fact
that it might cost some money to comply with the regulation, Platt said.

Indeed, the same argument could be made about regulations issued under generalized
authority, Platt said. If Congress gives authority to an agency to regulate unfair
practices, and an agency wants to do that, can the president really say, no the agency
can’t, if it costs money?

“So, at some level it sets up a constitutional conflict on the relationship between
the legislative branch and the executive branch,” Platt said.

To contact the reporter on this story: Cheryl Bolen in Washington at
cbolen@bna.com

To contact the editor responsible for this story:
Paul Hendrie at
pHendrie@bna.com

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